Harrison Wire Co. v. Hall & Willis Hardware Co.

• Decision Date: 09 February 1889
• Citation: 10 S.W. 619,97 Mo. 289
• Parties: The Harrison Wire Company v. The Hall & Willis Hardware Company, Appellant
• Court: Missouri Supreme Court

10 S.W. 619

97 Mo. 289

The Harrison Wire Company v. The Hall & Willis Hardware Company, Appellant

Supreme Court of Missouri

February 9, 1889

Appeal from St. Louis City Circuit Court. -- Hon. A. M. Thayer Judge.

Affirmed.

Dyer Lee & Ellis for appellant.

The court below committed error in not allowing the defendant as damages on the defendant's counterclaims the sum of $ 2,640.88, which was proven to be the true difference between the contract price and the market price which the defendant had to pay in order to fill its orders for fence-wire, the rule of law being well settled that the measure of damages in cases of this kind is the difference between the contract price and the market value at the time it should have been delivered. Northrup v. Cook, 39 Mo. 208; Koeltz v. Blaeckman, 46 Mo. 320.

S Hermann and Valle Reyburn for respondent.

(1) In a suit on an open account, whether the action is in the form of a petition, or counter-claim, the items of the account must be either set forth in the pleading, or a copy of it must be attached to the same, reference being made to it in the pleading. Unless the items are so set forth, or attached to the pleading, the party is precluded from giving evidence thereof. R. S. 1879, sec. 3547; Boone on Code Plead. sec. 88; Vassear v. Livingstone, 13 N.Y. 252; Cragin v. Lovell, 88 N.Y. 363; Bliss on Code Plead. sec. 367; Merritt v. Millard, 5 Bosw. 653. (2) In actions against a vendor for failure to deliver goods, the measure of damages is the difference between the contract price and the market value, on the day of the breach. Northrup v. Cook, 39 Mo. 208; Koeltz v. Bleckman, 46 Mo. 320; Rickey v. Tenbroeck, 63 Mo. 563.

OPINION

Ray, C. J.

The plaintiff herein is a corporation dealing in wire fencing at St. Louis, Missouri, and defendant herein is also a corporation engaged at Kansas City, Missouri, in the hardware business and trade. The petition is in two counts for goods and merchandise sold and delivered by plaintiff to defendant. As to the first count, there is no controversy, the judgment thereon in plaintiff's favor being conceded to be correct.

The second count in the petition is for goods and merchandise sold and delivered by plaintiff to defendant in January, A. D. 1883, and the amount for which plaintiff obtained judgment thereon is $ 1,397. The answer of defendant, in addition to a general denial, sets up two distinct and separate counter-claims, in two separate counts. If we have not misapprehended the record, and the positions and claims of the parties in this count, the second counter-claim is, with respect to this appeal, wholly immaterial. As we gather the facts, the amount for which defendant claims that judgment should have been given in its favor, by way of counter-claim, arises upon, and grows out of the first counter-claim exclusively. The first counter-claim is set up in the first count of the answer as follows: First: "Defendant, for a counter-claim against the plaintiff, states that, heretofore, to-wit, on the second day of November, 1882, the plaintiff entered into a contract, in writing, with the defendant, which is herewith filed, marked 'Exhibit A.,' and by which the plaintiff promised and agreed to sell and deliver to the defendant, fifty car-loads of barbed fence-wire, four-point licensed wire, one-half galvanized, if desired; at six and one-half cents per pound for painted, and seven and one-half cents per pound for galvanized, price guaranteed on unfilled orders, 'F. O. B.,' in St. Louis to be taken by July, 1883, with the privilege of cancellation; and which contract was then and there mutually agreed to and accepted by both of the aforesaid parties. That, in accordance with the terms of said contract, the defendant did order and direct the plaintiff to ship and deliver to the defendant fifty car-loads of barbed fence-wire as described in said contract; but the plaintiff failed, neglected and refused to deliver said fifty cars of barbed fence. wire, as required by their contract, with the exception of one car-load, whereby defendant says that he was damaged by the non-performance of said contract of plaintiff, in the sum of $ 3,000."

"Exhibit A.," referred to in this answer is as follows:

"Kansas City, Mo., November 2, 1882.

"Harrison Wire Co.,

"St. Louis, Mo.

"Gents: Enter our order for fifty cars barbed fence-wire, four-point licensed wire, one-half galvanized, if desired; at six and one-half cents per pound for painted, and seven and one-half cents for galvanized; price guaranteed on unfilled orders, F. O. B. in St. Louis, to be taken by July, 1883, with the privilege of cancellation."

The contract, we may observe, was executed by both parties, plaintiff and defendant. The reply of plaintiff denied generally the allegations of the counter-claims and a second reply alleges that said "Exhibit A." attached to the counter-claim is so vague and indefinite that the minds of the parties never met and that the terms were never fully agreed upon.

At the trial, which was had before the court without the intervention of a jury, and without any declaration of law being asked by either party, the plaintiff had judgment upon both counts of his petition, as already indicated, and defendant had judgment on its said counter-claims, for nominal damages.

Controversy and differences arose, it seems, between the parties subsequent to the giving and acceptance of said order of November 2, designated as "Exhibit A," for said fifty cars of wire, as to the true meaning thereof, according to mercantile usage and custom, and a large portion of the evidence at the trial was directed to the explanation and proper construction of certain words and phrases employed...